Nationality and Borders Bill

Written evidence submitted by Rights of Women to the Public Bill Committee (NBB48)

Nationality and Borders Bill

ABOUT RIGHTS OF WOMEN

Rights of Women is a legal rights organisation which specialises in supporting women who are experiencing – or at risk of experiencing – all forms of Violence Against Women and Girls (VAWG), including domestic and sexual violence. In our approach, we recognise the additional barriers posed by the intersection of gender-based abuse, racism, structural inequality and other forms of discrimination and oppression that impact on women’s vulnerability, exclusion and marginalisation.

By offering a range of services – including specialist telephone legal advice lines, legal information and training for professionals – we aim to increase women’s understanding of their legal rights and improve their access to justice. We empower women to make informed choices where they come into contact with the criminal, family, employment or immigration and asylum legal systems so they can live free from violence.

Rights of Women is a registered charity 1147913 and Company Limited by Guarantee.

ACCESS TO JUSTICE THROUGH CIVIL LEGAL AID

1. This evidence addresses specific issues concerning access to legal aid for victims of trafficking and victims of domestic abuse.

2. Rights of Women has long called for the re-introduction of ‘in scope’ [1] legal aid in relation to immigration and has previously published an extensive report [2] on the failures of the safety net that is the exceptional case funding scheme [3] . Our position in this respect is unchanged.

Clauses 54 & 55 – civil legal aid in relation to the national referral mechanism

3. Clauses 54 and 55 of the Bill seek to enable people already in receipt of civil legal aid in respect of specified immigration matters to receive additional advice in respect of a referral to the national referral mechanism as a potential victim of trafficking. The stated aim of these provisions is to identify and support individuals who may be potential victims of trafficking [4] .

4. While this is to be welcomed, it is regrettable that victims of domestic violence in receipt of civil legal aid under paragraphs 28 and 29 of Part 1, Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) have been unreasonably excluded from this additional support.

5. We would urge an amendment to clause 54 to enable those in receipt of civil legal aid as victims of domestic violence under paragraphs 28 and 29 of Part 1, Schedule 1 of LASPO to also have the opportunity to receive additional advice in respect of the national referral mechanism.

Victims of domestic violence locked out of legal aid owing to post-LASPO changes

6. While Parliament is taking the opportunity under this Bill to make amendments to LASPO, we urge it to consider long overdue amendments to remedy legislative oversights owing to Brexit and other changes to the Immigration Rules.

Need for action arising from amendments to the Immigration Rules

7. Under paragraph 28 of Part 1, Schedule 1 of LASPO Parliament decided that victims of domestic violence should have access to ‘in scope’ legal aid to apply for indefinite leave to remain where they were ‘given leave to enter or remain in the United Kingdom for a limited period as the partner of another individual present and settled in the United Kingdom’ and their relationship has broken down permanently because of domestic violence.

8. Section DVILR of the Immigration Rules sets out those individuals able to apply for indefinite leave to remain following the permanent breakdown of their relationship with their partner as a result of domestic abuse. Section DVILR includes applicants where their leave was granted as ‘a partner (other than a fiancé(e) or proposed civil partner) of a British Citizen, a person present and settled in the UK, a person with refugee leave, or a person in the UK with limited leave under Appendix EU’.

9. The drafting of paragraph 28 of Part 1, Schedule 1 of LASPO reflected Section DVILR as it was at the time that LASPO was drafted. At which time, Section DVILR included only partners of British Citizens and those present and settled in the UK.

10. Since paragraph 28 of Part 1, Schedule 1 of LASPO was drafted, however, Section DVILR has been extended to include partners of those with refugee status (since 10.01.2019) and partners of those with limited leave under Appendix EU (since 31.12.20).

11. It cannot be the case that Parliament intended that partners of those with refugee status and / or partners of those with limited leave under Appendix EU should be able to apply for indefinite leave to remain in the same way as can partners of those who are British Citizens or settled in the UK, but that those applications should not be in scope for legal aid whilst the applications of partners of those who are British Citizens or settled in the UK are in scope for legal aid.

12. This Bill is an opportunity to remedy this oversight and ensure that the legal aid support victims of domestic violence have been without since the changes to Section DVILR of the Immigration Rules in January 2019 and December 2020, respectively, are provided with respect to their applications.

13. We call for an amendment to paragraph 28 of Part 1, Schedule 1 of LASPO to allow civil legal aid to an individual in relation to their application for indefinite leave to remain where they were granted leave as a partner under any of the relevant categories, including as the partner of a refugee or as the partner of a person with limited leave under Appendix EU, where their relationship with their partner has broken down permanently as a result of domestic abuse.

Need for action arising from Brexit

14. The UK’s withdrawal from the European Union (EU) has necessitated significant domestic legislative change. One issue so far overlooked in this exercise is the ability of victims of domestic violence to access legal aid in respect of relevant immigration applications.

15. Under paragraph 29 of Part 1, Schedule 1 of LASPO Parliament decided that victims of domestic violence should have access to ‘in scope’ legal aid to apply for a residence card under the now revoked Immigration (EEA) Regulations 2006 in specified circumstances.

16. Since the end of free movement at 11pm on 31 December 2020, paragraph 29 has been ‘dead letter’ law insofar as it has, since then, been no longer possible to apply for such a residence card. Instead, the same cohort of victims of domestic violence that Parliament intended under paragraph 29 to have access to legal aid, are now having to apply to the EU Settlement Scheme but without access to legal aid.

17. This Bill is an opportunity to remedy this oversight and ensure that the legal aid support victims of domestic violence have been without this year, is reinstated with respect to their EU Settlement Scheme applications.

18. We call for an amendment to paragraph 29 of Part 1, Schedule 1 of LASPO to allow civil legal aid to an individual in relation to their application to the EU Settlement Scheme (including any administrative review or appeal) where the individual is ‘a family member who retained the right of residence’ [5] and they or another family member was the victim of domestic violence.

Rights of Women

1 November 2021

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[1] https://www.gov.uk/guidance/work-out-who-qualifies-for-civil-legal-aid

[2] https://rightsofwomen.org.uk/wp-content/uploads/2019/02/Accessible-or-beyond-reach.pdf

[3] https://www.gov.uk/guidance/legal-aid-apply-for-exceptional-case-funding

[4] Explanatory Notes to the Nationality and Borders Bill, paragraph 581

[5] As defined at Annex 1 of Appendix EU of the Immigration Rules